Miao v Secretary of State for the Home Department

Once substantial interference with family life is established, the state must justify it under European Convention on Human Rights article 8(2). The state must establish a sufficiently important objective, a rational connection between the measure and that objective, and no greater impairment than necessary.

Removal of a person without leave is generally justified by effective immigration control. Exceptional family-life circumstances may nevertheless make removal disproportionate. Immigration Rules and published policies are relevant to that assessment and must be applied on their correct footing.

Uncontroverted expert medical evidence cannot be dismissed as speculative merely because it expresses an opinion. Absent a sound reason to doubt the expert’s qualifications, factual foundation or reasoning, the decision-maker must take the opinion fully into account.

The appellant, a Chinese citizen whose asylum claim had failed, lived with his wife and cared for his father, a recognised refugee suffering from chronic depression and post-traumatic stress disorder. The father was actively suicidal and depended substantially upon their daily practical and supervisory care.

Following an earlier remittal, an immigration judge accepted that family life existed but dismissed the appeal under article 8 of the European Convention on Human Rights. The Asylum and Immigration Tribunal and Brooke LJ refused permission to appeal on the papers. Keene and Rix LJJ granted permission on renewal.

The central issue was whether the immigration judge had reached the conclusion that removal was proportionate by legally proper means, particularly in his treatment of the psychiatric evidence and the Home Secretary’s family reunion and carers policies.

1. The appeal was allowed and the proportionality issue remitted. The immigration judge had not assessed removal on the correct legal and evidential footing. The rehearing was to be conducted by a fresh immigration judge unless the parties agreed otherwise.

2. Article 8(2) did not require separate inquiries into necessity and proportionality. Proportionality is the means by which the court determines whether lawful interference is necessary in a democratic society. Once interference with a protected right is established, the state must show that its objective is sufficiently important, that the measure is sensibly directed to that objective, and that the right is impaired no more than necessary. The final criterion commonly requires comparison of the state’s objective with the impact upon the individual.

3. Removal of a person who has no right to remain is generally justified without additional reasoning. Exceptionally, the resulting disruption of family life may exceed what immigration control requires. The Convention operates with the Immigration Rules and policies as a control mechanism; it is not an independent trump card.

4. The immigration judge wrongly marginalised the treating psychiatrist’s uncontroverted prognosis merely because it was opinion evidence. An expert’s function is to express an opinion based upon clinical knowledge and expertise. Without a sound reason to doubt the expert’s qualifications or the factual or logical foundation of the opinion, it had to be taken fully into account.

5. “Compelling compassionate reasons” meant reasons which would compel, rather than merely invite, an objective decision-maker to feel compassion. The established facts incontestably satisfied that description. The father was chronically depressed, socially isolated and continuously at risk of suicide, while the prospects of substitute care were slender.

6. Paragraph 317 of the Immigration Rules concerned a person seeking admission or leave as the dependent relative of someone settled in the United Kingdom. The family reunion policy was not generally a mere amplification of that rule and offered a potentially more favourable route. The separate carers policy also demonstrated that a carer already present was not invariably expected to apply from abroad.

7. Satisfaction of the compassionate threshold did not itself establish that removal was disproportionate. It required proportionality to be reassessed on the footing that, apart from his presence in the United Kingdom, the appellant fell within the family reunion policy. The updated medical evidence, realistic prospects of substitute care and the carers policy were all to be considered.

1. Court of Appeal (Civil Division): By [2006] EWCA Civ 75, allowed the appeal and remitted the article 8 proportionality issue for reconsideration on the correct legal and evidential footing.
2. Asylum and Immigration Tribunal: Refused permission to appeal from the immigration judge’s decision. Brooke LJ also refused permission on the papers; Keene and Rix LJJ granted permission on renewal.
3. Immigration judge: Accepted that removal would interfere with established family life but dismissed the appeal under article 8, holding that removal would not be disproportionate.
4. Immigration Appeal Tribunal: Earlier upheld the rejection of the asylum claim but remitted the article 8 issue for fresh determination.